The Appeals Chamber has affirmed that the International Criminal Court (ICC) has jurisdiction over cases in which soldiers of an armed group commit war crimes against members of the same group. The decision puts to rest Bosco Ntaganda’s contention that the court based in The Hague lacks the mandate to try him over the alleged rape of child soldiers.

Ntaganda is facing 18 counts of war crimes and crimes against humanity. Under counts six and nine, the former Congolese rebel leader is charged with rape and sexual slavery of child soldiers who served in the Union of Congolese Patriots (UPC) by fighters from the same militia. The alleged crimes were committed during 2002 and 2003 when he, and members of the group, were among several militia active in conflict in Congo’s Ituri district.

The prosecution argues that Ntaganda, as the UPC’s former deputy chief of staff, is criminally responsible for the alleged rape and sexual enslavement of child soldiers in the militia by UPC commanders and soldiers.

Defense lawyers have fought a long battle against those charges, arguing since the pre-trial stage that, under Article 3 of the Geneva Conventions of 1949, war crimes may not be committed by members of an armed force against members of the same armed force. According to them, within the meaning of Article 3, the victim of a war crime in a non-international armed conflict must be a protected person “taking no active part in the hostilities.”

Furthermore, the defense argued that such crimes could be criminalized and punished domestically, as with all other crimes committed by soldiers against fellow members of the same force.

However, in a June 5, 2017 ruling, the Appeals Chamber, presided over by Judge Sanji Mmasenono Monageng, rejected the arguments by Ntaganda’s lawyers. The chamber considered that “international humanitarian law not only governs actions of parties to the conflict in relation to each other, but also concerns itself with protecting vulnerable persons during armed conflict and assuring fundamental guarantees to persons not taking active part in the hostilities.”

Appeals judges noted that Article 8(2)(b)(xxii) and (2)(e)(vi) of the Rome Statute does not expressly provide that the victims of rape or sexual slavery must be “protected persons” in terms of the Geneva Conventions or “persons taking no active part in the hostilities.” That meant that members of an armed group are not categorically excluded from protection against the war crimes of rape and sexual slavery when committed by members of the same armed group.

Article 8 of the Rome Statute lists the war crimes that the ICC has jurisdiction over, such as rape, sexual slavery, enforced prostitution, forced pregnancy, and other forms of sexual violence that constitute a grave breach of the Geneva Conventions.

Furthermore, the Appeals Chamber concurred with the finding by trial judges that “there is never a justification to engage in sexual violence against any person; irrespective of whether or not this person may be liable to be targeted and killed under international humanitarian law.”

In their decision last January, trial judges stated that while most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat [outside the fight] in conflict, those explicit protections do not exhaustively define or limit the scope of the protection against such conduct. Trial judges Robert Fremr (Presiding), Kuniko Ozaki, and Chang-ho Chung also stated that limiting the scope of protection in the manner proposed by the defense “was contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict.”

The trial chamber initially rejected Ntaganda’s challenge in October 2015, one month after the start of the trial, stating that there was no need to address the issue at that stage, as such questions of substantive law would be addressed when the chamber was assessing whether the prosecution had proven the crimes charged.

Following a defense appeal, the Appeals Chamber ruled that “the question of whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery is an essential legal issue which is jurisdictional in nature.” Accordingly, the Appeals Chamber remanded the matter to the Trial Chamber for it to address Ntaganda’s challenge to the jurisdiction of the court over count six and count nine.

Ntaganda started to testify in his own defense nearly two weeks ago, and his testimony is scheduled to last up to six weeks. He is the second witness called by his lawyers since the defense case started on May 29.